BACHUBHA RAMSINHJI Vs. SHIVLAL SHRI IPS

JUDGEMENT

(1.) The petitioner in the present case was working as an Unarmed Head Constable in Kutch District and was at the relevant time attached to Kandla Police Station in Kutch District. An incident took place on April 2 1963 in connection with a sailor by name Jorgenson V. Sherman of S. S. Marine Ranger; and it was alleged against P.S.I. Mehta of Kandla Water Police Station the present petitioner and another Head Constable attached to the Police Station Head Constable Chandgiram that they accepted in concert with each other a bribe of Rs. 500/for not instituting a case against the said Sherman even though he was found drunk in the territories which were within the jurisdiction of the Police Station and even though he was carrying a bottle of liquor with him. By the order dated July 30 1963 passed by the District Superintendent of Police Kutch the petitioner was suspended for his alleged part in this incident and thereafter by the Order dated September 3 1963 the first respondent the District Superintendent of Police Kutch District served a charge-sheet on the petitioner in connection with the Departmental Enquiry that was instituted against the petitioner. Thereafter respondent No. 1 held the Departmental Enquiry against the petitioner and after the evidence was recorded and the first stage of the enquiry was over on February 29 1964 the petitioner was served with a show-cause notice by the first respondent asking the petitioner to show cause why he should not be dismissed from service. Originally the time fixed for submitting the reply to the show-cause notice was a period of 7 days from the date of the receipt of the show-cause notice. Thereafter the time for submitting the reply to the show-cause notice was twice extended for a period of 10 days each and the last date for submitting the reply was April 17 1964 The reply was presented by the petitioner in person on April 21 1964 but the first respondent did not accept the reply on the ground that it had not been submitted within the stipulated time. The first respondent by his Order dated April 18 1964 dismissed the petitioner from service. Thereafter the petitioner filed an appeal to the Deputy Inspector General of Police Rajkot Range the second respondent herein and the appeal was disposed of by the second respondent by his order dated August 26 1964 The second respondent confirmed the conclusion of the first respondent that the charge against the petitioner had been established and he also confirmed the order of punishment passed against the petitioner by respondent No. 1 and the appeal filed by the petitioner was therefore dismissed. The present petition has been filed by the petitioner challenging the order of dismissal.

(2.) Various contentions have been set out in the petition challenging the legality of the order passed against the petitioner but at the hearing of the petition before us Mr. Mankad appearing on behalf of the petitioner has confined arguments mainly to one. We must make it clear that he has not given up his other contentions but he has indicated that if we were in a position to accept his contention on that one point it is not necessary for us to go into other contentions set out in the petition. It is possible that if we accept that main contention of Mr. Mankad and set aside the order of dismissal another Departmental Enquiry may be held against the petitioner and in the course of that second Departmental Enquiry something that we might say or observe regarding the other points set out in the petition might prejudice the case of the petitioner. The circumstance which has induced us to consider this one point which has been mainly urged before us by Mr. Mankad is that if we come to the conclusion that the petitioner is entitled to succeed on that one point we need not express any opinion in the course of this judgment regarding any of the other contentions set out in the petition.

(3.) This contention which has been principally relied upon by Mr. Mankad is set out in para 1 of the petition and the statement there is that the petitioner was appointed Head Constable in Kutch District Police Force by the Deputy Inspector General of Police Rajkot. Mr. Mankad has contended that under Article 311(1) of the Constitution the petitioner should have been dismissed only by an authority not subordinate to that by which he was appointed. Mr. Mankads contention is that the petitioner was appointed Head Constable in Kutch District by the Deputy Inspector General of Police Rajkot Range and therefore the order dismissing him from service could only have been passed by an authority not subordinate to the Deputy Inspector General of Police. The contention in this connection is that inasmuch as the order of dismissal was passed in the first instance by the District Superintendent of Police Kutch who clearly is an officer subordinate in rank to Deputy Inspector General of Police Rajkot the order dismissing the petitioner from service violates Art. 311(1) of the Constitution. In this connection we may point out that though this particular data is not available from the materials on record it is common ground between the parties that the petitioner was appointed in the first instance as a Police Constable by the D.S.P. of Madhya Saurashtra District in the former State of Saurashtra and he was so appointed on March 8 1950 It is not in dispute before us that on May 25 1957 the Deputy Inspector General of Police Rajkot Range issued an Office Order to the following effect:- Following Constables are promoted as Mead Constables and transferred to Kutch District in the interest of public service. And the name of the present petitioner is set out in the list of constables who were so promoted from Madhya Saurashtra District and transferred to Kutch District. A copy of that order of the Deputy Inspector General of Police Rajkot is annexed to the affidavit-in-rejoinder filed by the present petitioner in these proceedings.